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Employment Law Journal: May 2011

In OTG v Barke, the EAT has clarified the application of TUPE to pre-pack administrations, as Suzanne Horne explains

Any lawyer who has ever advised on the employment law aspects of a pre-packaged sale in administration knows that these are transactions that are negotiated quickly and typically concluded late at night. Yet despite this palpable sense of urgency, employment lawyers need to give clear advice on what happens to any employees of the business and the inherent duties, risks and liabilities. A key element of this advice depends upon whether the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) apply to the pre-pack process and administrations under Schedule B1 of the Insolvency Act 1986. In five appeals listed together and referred to below as OTG Ltd v Barke & or s [2011], the Employment Appeal Tribunal (EAT) has now held that TUPE does apply to pre-pack sales because it applies to all administrations.

Dechert LLP

Charles Wynn-Evans reports on some recent decisions that demonstrate the need for care in drawing up explicit bonus provisions

The Court of Appeal decision in Commerzbank Ag v Keen [2006] made it more difficult to challenge employers’ power to award discretionary bonuses. It was held in that decision that to argue successfully that a discretionary bonus award was in breach of contract because it was capricious or in breach of the implied duty to maintain trust and confidence, an executive would need to show an overwhelming case.

Julian Yew reviews a recent case in which the High Court was asked for an injunction to prevent an employee from pursuing a claim while arbitration took place

Employers’ ability to ‘contract out’ of their statutory obligations is limited by operation of law. In discrimination-related disputes, s144 Equality Act 2010 provides that a term of a contract is unenforceable if it purports to exclude or limit a provision of the Act unless it is made with the assistance of an ACAS conciliator or a qualifying compromise agreement. In non-discrimination cases, any contracting-out agreement must satisfy the statutory requirements set out in s203 Employment Rights Act 1996 (ERA).

Turbervilles

Marc Jones and Mandeep Kalsi investigate the increasing use of the PHA in workplace bullying claims

The Equality Act 2010 provides a mechanism for employees to pursue claims of harassment against the harasser as an individual and the employer (on grounds of vicarious liability). However, the harassment must be related to a relevant protected characteristic, namely age; disability; gender reassignment; marriage or civil partnership; pregnancy and maternity; race, religion or belief; or sex or sexual orientation. If there is no link between the harassment and a protected characteristic, this precludes the employee from pursuing a claim under the Act and allows the employer to escape liability for the actions of the perpetrator, its employee.

Prolegal Ltd

Is it permissible under the Equality Act to employ an all-white cast on the grounds of authenticity, asks Andrea Nicholls

There are only limited circumstances when direct discrimination is permissible. But in the entertainment world it probably occurs more than in any other sphere, usually without the whisper of a claim. Othello is black. Oliver Twist is grimily white. King Lear is usually fat.

Anne Sammon considers the potential impact on employers if the government implements the recommendations in the Davies report

The Davies report on ‘Women on Boards’ has generated debate around the issue of how best to increase female board participation. The report was commissioned by the government to identify the barriers that prevent women from reaching the boardroom and to provide recommendations on the ways in which female participation on corporate boards could be increased. Although the report’s recommendations only relate to listed companies, if they are implemented, they may become the standard by which all companies are judged.

Richard Hanson-Jones looks at how claimants are under increasing pressure to use a panel lawyer selected by their insurer rather than an expert of their own choosing

Legal expense insurance is a prominent feature in the landscape of employment law. Many tribunal cases are launched with the financial backing of the claimant’s legal expense insurer and, as often as not, the necessary expertise would not otherwise be available to the claimant. But times are hard, not just for employers and jobless claimants, but for the insurance industry as well. Insurers are suffering from a drop in investment income, a rise in claims and an inability to raise premiums in an increasingly competitive market. So what to do? Take a tougher look at claims, that’s what. And in this regard the legal expense sector is no different from the rest of the insurance market.